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GUJARAT HIGH COURT
Dr. Ashokkumar C. Joshi, J.
Hemantbhai Mukundrai Desai – Petitioner
versus
Kishorbhai Bhikhubhai Patel – Respondent
R/Special Civil Application No.3390 of 2021
Decided on 19.2.2021
Counsel for the Parties:
For the Petitioner Nos.1, 2, 3:Mr. Dakshesh Mehta (2430), Advocate
For the Respondent No.1:Mr. Rushang D. Mehta (6989), Advocate
IMPORTANT POINT
A party should not remained unheard – Adjudication should be on merits rather than on mere technicalities.
Headnote:
Civil Procedure Code, 1908 – Order XVIII, Rule 4 – Right to cross-examine witnesses – A party should not remained unheard – Adjudication should be on merits rather than on mere technicalities – A party should not suffer for mistake of his Lawyer and Courts of law should be slow on random dismissal on account of the same – Impugned orders set aside and right of petitioners-original defendants to cross-examination reopened, with exemplary cost to be paid by petitioners-original defendants to respondent-original-plaintiff.
Held: It is a settled principle of law that a party should not remained unheard. It is also settled principle of law that adjudication should be on merits rather than on mere technicalities. Further, at the cost of repeatation it is reiterated that as per the catena of decisions of the Hon’ble Apex Court, a party should not suffer for the mistake of his lawyer and the Courts of law should be slow on random dismissal on account of the same.
In the backdrop as aforesaid, this writ petition is hereby allowed and the impugned orders dated 10.10.2019, 23.12.2019 and 22.01.2020 passed below application Exhs. 123, 124, 125, 129 by the learned Additional Civil Judge and Judicial Magistrate First Class, Chikhli, District- Navsari are hereby set aside and the right of the petitioners-original defendants to cross-examination is hereby reopened, with exemplary cost to be paid by the petitioners-original defendants to the respondent-original-plaintiff. (Paras 7 and 8)
Result: Writ Petition allowed with costs.
ORDER (ORAL)
Dr. Ashokkumar C. Joshi, J.—This matter is taken up through video conference.
2. This petition has been filed by the petitioners with the following main prayers, which read as under:
“(A) Your Lordships may be pleased to issue a writ of certiorari or any other appropriate writ, order or direction quashing and setting aside the order dated 10/10/2019 in application Ex. 123, dated 23/12/2019 in application Ex. 124, dated 23/12/2019 in application Ex 125 and dated 22/01/2020 in application Ex. 129 passed by Learned Additional Civil Judge & Judicial Magistrate First Class, Chikhli Dist. Navsari in Regular Civil Suit No. 132/2015, in the interest of justice;
(B) Pending admission, hearing and final disposal of the present petition, Your Lordships may be pleased to stay the further proceedings of Regular Civil Suit no. 132/2015 pending before Additional Civil Judge & Judicial Magistrate First Class, Chikhli, Dist. Navsari:”
3. The facts in nutshell of the case are that the respondent herein – original plaintiff has filed a Regular Civil Suit No. 132 of 2015 before the Court of Additional Civil Judge and JMFC, Chikhli, District – Navsari. It is the contention of the petitioners-original-defendants that the suit land was in independent possession and ownership of Manubhai Chhotubhai Desai and on demise of Manubhai, the mutation entry of heir was made in the revenue record vide Entry No. 5621 and by way of this entry, names of Mukundrai Chhotubhai Desai in the capacity of brother and Sudhaben in the capacity of widow of Manubhai Chhotubhai were entered in the revenue record. It is the case of the petitioners herein – original-defendants that by taking advantage of ignorance of Sudhaben, the respondent – original-plaintiff got the will in his favour from Sudhaben. Further, on 15.12.2015, the Regular Civil Suit No. 132 of 2015 was filed and summons were issued by the Court, where were duly served to all the defendants till 18.03.2018. Thereafter, the advocate filed Vakalatnama on behalf of the defendants on 18.07.2018. Initially Exh. 5 was taken for hearing and advocate appearing for the plaintiff had submitted written arguments on 16.11.2018. The petitioners- original-defendants had submitted their reply Exh. 29 on 04.01.2019, alongwith counter claim Exh. 32 and the said reply was give Exh. 35. Thereafter on 13.06.2019 issues were framed. The respondent – original plaintiff submitted the list of his witnesses on 29.08.2019. Thereafter on 19.09.2019, respondent – original-plaintiff submitted his affidavit-in-Chief under provisions of Order-18, Rule -IV of the Code of Civil Procedure. Thereafter, the matter was adjourned to 10.10.2019. On that day, when the matter was called out in the First Session, the learned advocate appearing for the petitioners herein- original defendants was not remained present, upon which the learned trial Court passed an order 10.10.2019 that the defendants are not interested in the proceedings with the cross-examination of witness, thus, the right to cross-examination is closed. Hence, this petition.
4. Learned advocate Mr. Dakshesh Mehta for the petitioners has submitted that the petitioners herein are the original-defendants in the Regular Civil Suit No. 132 of 2015, wherein by the impugned orders, the right of the petitioners-original defendants to cross-examine is rejected due to the absence of learned advocate representing the petitioners before the trial Court. He fairly submitted that the concerned learned advocate is a senior citizen, and on account of the circumstances beyond control, he could not remain present before the learned trial Court. He submitted that due to no fault on the part of the petitioners they will have to suffer, more particularly for want of presence of leaned advocate. Accordingly, in the interest of justice, he requested to give a chance to petitioners and reopen their right to cross-examine. He assures that the petitioners will cooperate in the proceedings without
